AKT15 v Minster for Immigration

[2017] FCCA 400

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKT15 v MINSTER FOR IMMIGRATION & ORS [2017] FCCA 400

Catchwords:
MIGRATION – Judicial review – International Treaty Obligation Assessment – alleged denial of procedural fairness application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
SZSSJ v Minister for Immigration and Border Protection (2016) 90 ALR 901

Applicant: AKT15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent: GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: DNG 15 of 2015

Judgment of: Judge Young

Hearing date: 28 February 2017

Date of Last Submission: 28 February 2017

Delivered at: Darwin

Delivered on: 28 February 2017

REPRESENTATION

The Applicant by videolink: In person

Counsel for the Respondents: Ms Davidson

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 9 April 2015 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 15 of 2015

AKT15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION AND ANOTHER

First Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

GREG BREWER, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application following the applicant’s failure to obtain from the Minister, or an officer of the Department perhaps more accurately, a successful outcome following an International Treaty Obligation Assessment, usually known as an ITOA. The applicant has sought a declaration that the ITOA process was not conducted according to law and relief in the nature of prerogative writs. 

2. The grounds of his application are set out in 19 paragraphs. They are a template application used in other proceedings in this court. I consider that they are barely comprehensible and do not appear to be drafted by a lawyer although they may well have been drafted by a lawyer.  For example, parts of it are simply typed and then there is a blank left for someone else to fill in.  For example, paragraph 1:

   The applicant is a citizen of –

   “blank” in type, and then there has been handwritten “China”.  Paragraph 15 has a space for filling in the date of the ITOA decision, though in this application that has been overlooked and the date has not been filled in.

3. The applicant did not comply with an order to file written submissions and I asked the applicant if he was able to point to any error in the decision-making process followed in the ITOA. He was not. He claimed the decision was unfair. He claimed that as a result of the data breach of personal details in 2014 he was at risk of harm should he be returned to China.  He was incapable of pointing to any jurisdictional error. That is not perhaps surprising considering he is not assisted by a lawyer, he does not speak English and it appears from the documents that he is a man of very limited education. 

4. His background, briefly, is as follows. He came to Australia in 2005 on a false Chinese passport in a false name. In 2005 he applied for a protection visa from the then Refugee Review Tribunal, including in his claims the claim that he was persecuted because of his practice of Catholicism. Those claims were all rejected. The applicant appears to have worked in Australia in the intervening years as a tiler without a visa. 

5. The initial protection visa application was made in a false name. In 2014 or thereabouts a further application for a protection visa was made in the applicant’s correct name and he conceded in the process of that application that his earlier claims were false. His application was refused by a delegate on 5 March 2014 and he subsequently withdrew an application for judicial review to this court.

6. In February 2014 the Department accidentally released personal details of many detainees, including the applicant’s. Subsequently in March 2014 the Department advised the applicant of the data breach and subsequently began the ITOA process or, in other words, an assessment of whether returning the applicant to China would be a breach of Australia’s non-refoulement obligations. 

7. The process undertaken by the Department in the ITOA process appears to be identical to the process that the High Court in SZSSJ v The Minister for Immigration and Border Protection (2016) 90 ALR 901 held was a procedurally fair process, that is, there was an assessment in this case carried out on the assumption that the applicant’s personal details had been accessed by the Chinese authorities. There is the additional factor in this case that the details released during the data breach were in fact false details provided by the applicant.

8. The applicant was advised of adverse material to the applicant, that is, the earlier false applications and false claims, in advance of the ITOA process. The conclusion reached at the end of that process was that there was no risk that the applicant would be subjected to serious harm if he were returned to China.

9. The Minister has raised a further point in supplementary submissions to this court, which relates to a letter that was sent to the departmental officer undertaking the ITOA process on 8 March 2014. That was before the ITOA process was carried out. That letter arguably raised some new claims. The first was a claim that the applicant had been refused permission to build a house because he was a Catholic and, as a result, he had suffered persecution, and the second issue raised was that the applicant claimed to have picked up an infant girl on the roadside abandoned by her mother and the Chinese authorities accused him of a breach of “family planning”. I take that to mean a breach of family planning laws. He was said to have been detained for a month and fined a sum of money before he was released.

10. Those matters were not considered in the ITOA process. The Minister says in response to that that there has been no lack of procedural fairness because the claims relating to the applicant’s alleged Catholicism were made in the first protection visa application and were dismissed. Indeed, the applicant in the second protection visa application admitted that his first claims, which included the claims of practice of Catholicism, were false. It is said that in those circumstances, there can be no lack of procedural fairness. I accept that submission.

11. The second issue, relating to the allegation of being subjected to the Chinese family planning laws and having been imprisoned and fined does not raise a clearly articulated claim to fear persecution. It was submitted by the Minister that those circumstances it was not necessary to consider it. I accept that submission. 

12. It appears to me that the nub of the applicant’s claim is that he was denied procedural fairness and if he was not denied procedural fairness in the ITOA process it is difficult or impossible to see that any of his other claims have any relevance or substance. For that reason I dismiss the application. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 3 March 2017